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HomeMy WebLinkAbout1999-1744.Caron.04-09-16 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 1999-1744 2001-0664 2001-1761 2001-1884 2002-1226 2002-1733 2002-2275 2002-2296 2002-2374 2002-2399 2002-2544 2003-2922,2003-2923 2003-2924 UNION# 1999-0467-0013 2001-0467-0006 2002-0467-0004 2002-0467-0012,2002-0467-0007 2002-0467-0010 2002-0467-0009 2002-0467-0008 2002-0467-0006 2002-0467-0093 2002-0467-0094 2002-0467 -0095 2002-0467-0096 2002-0467-0097 2002-0467-0099 2002-0467-0103 2002-0467-013 7 2002-0467-0138 2002-0467-0140 2002-0467-0139 2002-0467-0141 2002-0467-0142,2003-0467-0045 2003-0467-0046 2003-0467-0047 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Caron) Grievor - and - The Crown m RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Joseph Carner Vice-Chair FOR THE UNION Nelson Roland Barnster and SOlICItor FOR THE EMPLOYER Ben] amm Parry Counsel Management Board Secretanat HEARING January 20 May 17 & July 5 2004 2 Intenm Order The Employer has requested that I dIsmIss a senes of gnevances filed by Mr Jonathon Caron wIthout proceedIng wIth a heanng on the ments of those gnevances That request, whIch I wIll hereafter refer to as a "motIOn" was precIpItated by two factors 1 The faIlure of the Gnevor to provIde partIculars wIth respect to each of the vanous gnevances on or before June 21 8t as prevIOusly agreed upon by counsel 2 FaIlure of the Gnevor to appear for a heanng on July 5 2004 As an alternatIve to the motIOn to dIsmIss, the Employer takes the posItIOn that, If the gnevances are adjourned, they be adjourned on reasonable condItIOns IncludIng recogmtIOn that the delay from July 5th onwards was precIpItated by the Gnevor LIabIlIty If any should not accrue to the Employer for the penod occasIOned by the delay The Back2round ThIS matter was ongInally scheduled for heanng on January 20 2004 The proceedIngs Involved In excess of 35 gnevances filed by the Gnevor the earlIest of whIch appears to have ansen In 1999 However that gnevance stands alone the balance of the gnevances beIng filed In 2001 and 2002 In any event, the proceedIngs commenced on January 20 2004 and the partIes met WIth the Vice-Chair In the hopes of findIng a medIated resolutIOn. A reVIew of the outstandIng matters made It clear that not Included as a matter before the Vice-Chair was, amongst other thIngs, the Gnevor's termInatIOn. The PartIes met agaIn on May 17 2004 at whIch tIme a further effort was made to resolve all outstandIng matters IncludIng the Gnevor's termInatIOn. The partIes had agreed that the Vice-Chair could deal wIth that Issue In medIatIOn but there was no agreement or order up to that tIme that It be consolIdated for the purposes of arbItratIOn. At the conclusIOn of the May 1 ih proceedIng, counsel had agreed that they would exchange partIculars 3 on or before June 21 2004 so that they would be In a better posItIOn pnor to the next scheduled date ofheanng, July S 2004 to deal wIth any prelImInary Issues such as 1 consolIdatIOn of other outstandIng gnevances IncludIng the Gnevor's termInatIOn, 2 the onus on the ments and an assessment as to whIch party should proceed first; 3 dIscussIOns or submIssIOns wIth respect to the sufficIency of partIculars In addItIOn to the foregoIng It IS Important to note that the RegIstrar of the Gnevance Settlement Board dIstributed notIce of proceedIngs respectIng both the May 1 ih and July Sth dates on or about Thursday February 19th 2004 As mIght be ImagIned, the Employer had, pnor to the consolIdatIOn of the Gnevor's termInatIOn, lIttle to provIde In the way of dIsclosure or partIculars NotwIthstandIng that, on June 21 2004 the Employer dId provIde the Umon wIth an Indexed senes of documents by way of dIsclosure None of that has been shared wIth the Vice-Chair up to the present tIme nor has there been any challenge by the Umon as to the adequacy of sufficIency of that dIsclosure In the letter whIch accompamed the dIsclosure document, Mr Parry for the Employer noted that he had yet to receIve any documentatIOn or partIculars from the Umon wIth respect to the matters then In Issue That letter set the stage for the Issue now before me It reads as follows "Pursuant to the Parties discussions with T 'ice-Chair J Carrier at the hearing dated Ala, 17 2004 please find the attached documents with an accompanving index. The Emplover reserves the right to provide further documents to the Grievance 'lettlement Board and the [Tnion should additional documents come to our attention hefore or during the hearing On Ala, 17 2004 the Parties agreed to provide full disclosure and particulars for each grievance on or hefore June 21 2004 That date was identified in order to provide the Parties with sufficient time to identifi GIn preliminan issues and prepare for the Juh 5 2004 hearing date. The Emplover has not received GIn disclosure or particulars as oftoda, and, as a result, will be seeking to dismiss the grievances currenth before the Board at the Juh 5 2004 hearing In addition, the [ nion has not identified whether or not it will be seeking to consolidate the Grievor's grievance of his termination. 4 Finalh on Juh 5 2004 the Emplover will he taking the position that it should not he prejudiced h" GIn dela" resultingfrom the [Tnion'sfailure to provide particulars. For greater clarin in the event that there is GIn liabilin on the Emplover (which is not admitted and denied) the Emplover will not be liable for GIn monies, including interest after Juh 5 2004 caused b" this dela" " When the matter reconvened on July 5 2004 there had not yet been a response to the request for partIculars and, more Importantly the Gnevor dId not appear at the heanng. Dunng the course of dIscussIOns between counsel and the Vice-Chair Mr Roland, counsel for the Umon, was able to contact the Gnevor He then relayed the folloWIng InformatIOn 4 He hImself was unaware that the Gnevor was III untIl he attempted to contact hIm that mormng. The Gnevor advIsed hIm that he had been sIck for a week and contInued to be unwell such that he could not attend proceedIngs that mormng. Mr Roland dId not InqUIre Into the nature of the Illness due to hIS own sensItIvIty to pnvacy concerns 5 The Gnevor had e-maIled Mr Roland's office on July 1 st to InqUIre concermng the folloWIng (a) to confirm the date of the July heanng; and (b) to dIscern whether or not hIS attendance would be reqUIred. As luck would have It Mr Roland's office was closed through the long weekend commenCIng Thursday July 1 st untIl the Sunday July 4th accordIngly Mr Roland was unaware of that e-maIl untIl the mormng of these proceedIngs In any event, on speakIng wIth the Gnevor the latter expressed hIS dIsmay that Mr Roland's office had not responded to hIS e-maIl and that he had the mIstaken understandIng that hIS presence would not be reqUIred SInce the PartIes would be dealIng wIth matters of process only AddItIOnally Mr Roland IndIcated that the Gnevor had Indeed e-maIled some InformatIOn concernIng the reqUIred partIculars but that hIS office had been unable to open the attachment to the e-maIl There was no InformatIOn provIded as to when the Gnevor sent the e-maIl contaInIng the attachments to Mr Roland or as to why the problem 5 could not have been corrected on or before June 21 st the date by whIch partIculars were to have been exchanged. The Ar2ument and the Decision The Employer submItted several cases In each of whIch a Vice-Chair of the Gnevance Settlement Board had dIsmIssed gnevances due to the faIlure of a Gnevor to appear at a heanng of the Board, however In the first of those cases, MartIn, G S.B FIle No 0733/01 0734/01 (Bloch) the gnevor had not only faIled to appear on a prevIOUS occaSIOn but the partIes had entered Into a Memorandum of Agreement to the effect that the gnevor's faIlure to appear In the future would result In a dIsmIssal of the gnevances The second case InvolvIng the gnevor Slusarchuk, G S.B FIle Nos 1936/95 et seq (0 V Gray) the Vice-Chair had Issued an earlIer order when the gnevor had faIled to appear for prevIOUS proceedIngs The order stIpulated amongst other thIngs that "her faIlure to attend barnng exceptIOnal cIrcumstances, would be grounds to dIsmIss the matter" The thIrd case decIded by Vice-Chair Barry FIsher InvolvIng the gnevor Van Laere In G S.B FIle No 951/92, was dIsmIssed wIthout any earlIer faIlure by the gnevor to attend a heanng. However In that case the umon was unable to provIde any explanatIOn whatsoever for the gnevor's absence and, more Importantly the gnevance concerned an allegatIOn of unJust dIscIplIne The Vice-Chair dIsmIssed the gnevance only "upon the express undertakIng by the employer to the Board that the events of the day In questIOn namely Apnl2, 1992 were not Intended to be dIscIplInary at the tIme nor would be relIed upon In future proceedIngs as dIscIplInary " In the cIrcumstances, It IS my vIew that none of those cases are of assIstance In determInIng whether or not thIS senes of gnevances should be dIsmIssed for the Gnevor's faIlure to appear on July 5th I have consIdered the InfOrmatIOn provIded by counsel as well as theIr submIssIOns and arguments and conclude that thIS IS not a case In whIch dIsmIssal for the Gnevor's faIlure to 6 appear would be appropnate In the case before me, the Gnevor had appeared on two prevIOUS occaSIOns and had not IndIcated In any way that he dId not Intend to co-operate wIth the Umon In the preparatIOn or presentatIOn of hIS case nor dId he show any reluctance to partIcIpate In proceedIngs WhIle there may be some doubt as to the legItImacy of the reasons he gave to Mr Roland for hIS faIlure to attend on July sth extendIng to hIm the benefit of the doubt, he mIght have been somewhat confused concernIng the process, thIS IS especIally so SInce behInd the scenes, counsel were contInuIng In theIr efforts to resolve all outstandIng matters IncludIng hIS termInatIOn Although the Gnevor's termInatIOn was not officIally before me as at the July sth date, I understand that some of the Issues Involved In those gnevances whIch were before me wIll be relevant to the termInatIOn Issue If as and when It does proceed. Therefore, dIsmIssal of the earlIer gnevances would lIkely preJudIce the termInatIOn gnevance Finally I am not satIsfied that the Gnevor's faIlure to appear reflected a refusal to attorn to the JunsdIctIOn of the Gnevance Settlement Board. (In thIS regard see Re Toronto (CIty) and CUPR Loc. 79 (Warner) (1998) 73 L.AC (4th) 412 (Craven) On the other hand, the CIrcumstances do ment the ImposItIOn of some stnctures on the Gnevor's future conduct. I wIll deal wIth those later In thIS Award. ThIS bnngs me to the second basIs upon whIch the Employer sought to have the gnevances dIsmIssed. That aspect of the motIOn was premIsed on the Gnevor's faIlure to provIde partIculars In a tImely fashIOn. AgaIn, there had been no prevIOUS order of the Board that partIculars be provIded, however the agreement of counsel to exchange partIculars on or before June 21 st was clear and unambIguous The explanatIOn for the faIlure to provIde those partIculars as undertaken IS agaIn questIOnable E-maIl as a form of commumcatIOn IS sImply one of a vast array of methods whIch are avaIlable In today's world. The Gnevor could easIly have remedIed that faIlure In the cIrcumstances, that aspect of the Gnevor's explanatIOn IS less than 7 satIsfactory especIally sInce the partIculars were stIll unavaIlable on the July 5 heanng day NotwIthstandIng that, SInce counsel were dunng the same tIme frame engaged In settlement dIscussIOns, I am satIsfied that the Gnevor mIght have mIsunderstood the urgency and the need for hIm to provIde those partIculars In a tImely fashIOn. There IS lIttle precedent for a decIsIOn to dIsmIss for want of partIculars except where there has been faIlure to comply wIth an order of the Board and, but for those partIculars, the case could have proceeded. [(see Klonowski et al G S.B no 1799/99 et seq (FIsher)] SInce that IS not the sItuatIOn before me, I wIll not dIsmIss the gnevances on the basIs only of the faIlure to partIculanze at or before June 21 st However the responsIbIlIty for faIlure to do so and the delay occasIOned from that faIlure lIes dIrectly at the Gnevor's doorstep The Employer In the cIrcumstances, ought not to suffer any lIabIlIty for the consequences of that delay I have attempted to take that matter Into consIderatIOn In my final Order whIch IS set out below The Decision and Order In addItIOn to those gnevances whIch were before me up and IncludIng July 5 2004 the PartIes agreed on that date to consolIdate wIth those matters three other gnevances IncludIng the Gnevor's dIscharge Those matters are represented by OPSEU Nos 0045-0ctober 16/03 0046- October 4/03 0047-0ctober 4/03 For the reasons set out above, the Umon IS ordered to provIde to the Employer partIculars as to the facts and Issues In dIspute before me IncludIng those addItIOnal gnevances noted above and whIch I hereby confirm as consolIdated wIth those prevIOusly before me Those partIculars need not Include "wIll say" statements from the Gnevor however they shall set out the nature of the conduct of the Employer whIch IS gneved as well as the Party or PartIes engagIng In that conduct together wIth the date and tIme of that conduct. As to a tIme frame for those partIculars, most of that InformatIOn ought already to have been In Mr Roland's hands However SInce none of that 8 mformatIOn has been shared eIther wIth Employer counselor wIth the Vice-Chair up to the present tIme It IS unclear as to whether or not It mcludes the mformatIOn I have ordered and as to whether It IS m presentable form In the cIrcumstances, I wIll allow three weeks from the date of release of thIS Award for the Umon to provIde that mformatIOn to the Employer Accordmgly the Umon IS hereby dIrected to provIde those partIculars wIthm three weeks of the date of the release of thIS Award. In addItIOn to the foregomg, It IS my order and dIrectIOn that the Gnevor's faIlure to attend any future proceedmg of thIS Board, barnng exceptIOnal cIrcumstances, wIll be grounds for dIsmIssal of all matters then before me Fmally as I have mdIcated earlIer m thIS Award, thIS matter has been delayed as a consequence of the Gnevor's faIlure to provIde to Umon counsel m a tImely fashIOn those partIculars whIch were to be conveyed to the Employer on or before June 21 st AddItIOnally the Gnevor's faIlure to appear on July sth resulted m further delay of these proceedmgs In the cIrcumstance, It IS my Order and DIrectIOn that m the event of any findmg m favour of the Gnevor at the conclusIOn of the proceedmgs on the ments of the subJect gnevances, any damages to whIch he mIght otherwIse be entItled wIll be adJusted to reflect the delays dunng the proceedmgs attnbutable to hIS conduct. For the reasons set out above the motIOn to dIsmIss by the Employer IS not successful The request for adJournment by the Umon succeeds subJect to the condItIOns I have set out above DATED at Toronto thIS 16th day of September 2004